United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
C. CECCHI UNITED STATES DISTRICT JUDGE
se Petitioner Hassan Bilal, a prisoner confined at the
East Jersey State Prison in Rahway, New Jersey, seeks to file
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. The Court previously screened the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases,
and issued an order directing Petitioner to show cause as to
why the Petition should not be dismissed as time-barred. (ECF
No. 13). Petitioner filed a response. (ECF No. 16).
memorandum opinion accompanying the show-cause order, the
Court found that because Petitioner filed a 117-day late
appeal on his state court denial of post-conviction relief
("PCR"), combined with the filing of the instant
Petition 361 days after he had exhausted his state court
remedies, the Petition appears untimely. (ECF No. 12 at 5).
The Court allowed Petitioner a chance to raise equitable
tolling arguments. (Id. at 6).
response, Petitioner blames the lateness of his PCR appeal on
the public defender's office, who represented Petitioner
on appeal. However, as held by the Supreme Court, an
attorney's miscalculation of the filing deadline is not a
ground for equitable tolling. See Lawrence v.
Florida, 549 U.S. 327, 336-37 (2007) ("Lawrence
argues that his counsel's mistake in miscalculating the
limitations period entitles him to equitable tolling. If
credited, this argument would essentially equitably toll
limitations periods for every person whose attorney missed a
deadline. Attorney miscalculation is simply not sufficient to
warrant equitable tolling, particularly in the postconviction
context where prisoners have no constitutional right to
counsel."); see also Fahy v. Horn, 240 F.3d
239, 244 (3d Cir. 2001) ("In non-capital cases, attorney
error, miscalculation, inadequate research, or other mistakes
have not been found to rise to the 'extraordinary'
circumstances required for equitable tolling."). In the
same regard, the Third Circuit has also held that
"attorney malfeasance or nonfeasance is typically not an
'extraordinary circumstance' which justifies
equitable tolling." United States v. Bass, 268
Fed.Appx. 196, 199 (3d Cir. 2008) (citing Schlueter v.
Vomer, 384 F.3d 69, 76 (3d Cir. 2004)); see also
Valerio v. United States, No. 15-1906, 2015 WL 4086577,
at *3 (D.N.J. July 6, 2015). As such, even if the lateness of
the PCR appeal can be attributed to the public defender's
office, that is not a valid ground for equitable tolling.
Indeed, the Third Circuit has held that the ability of a
petitioner to file a pro se appeal, notwithstanding
his attorney's failure to file, is grounds for denying
equitable tolling. See Brown v. Shannon, 322 F.3d
768, 773-74 (3d Cir. 2003) (finding that equitable tolling
was not warranted because the petitioner could have filed
a pro se notice of appeal in state court to toll his
federal habeas statute of limitations).
further argues that tolling is appropriate because the state
court accepted the PCR appeal as timely, an argument that the
Court already addressed in its previous opinion.
(See ECF No. 12 at 4-5). "n federal habeas
review, this Court is governed by federal rules, case law,
and statutes regarding the timeliness of federal habeas
petitions." Lee v. Hastings, No. 13-2190, 2015
WL 5177619, at *3 (D.N.J. Sept. 3, 2015). Accordingly, this
Court and courts in this district have repeatedly held that
§ 2244(d)'s statute of limitations runs
independently from any state-imposed time limits. See
Murphy v. Holmes, No. 12-3188, 2015 WL 5177640, at *2
(D.N.J. Sept. 4, 2015); Figueroa v. Buechele, No.
15-1200, 2015 WL 1403829, at *3 (D.N.J. Mar. 25, 2015);
Anderson v. Goodwin, No. 08-5183, 2010 WL 3812366,
at *7 (D.N.J. Sept. 22, 2010) ("[W]hile Anderson's
state PCR petition may not have been untimely under state
law, it certainly was untimely under the federal statute of
limitations for habeas actions.")- It is inconsequential
that Petitioner's PCR appeal was accepted as timely by
the state court; federal habeas petitions are governed by the
federal habeas statute and federal law.
Petitioner is not blameless for the untimeliness of the
Petition. "[F]or a petitioner to obtain relief there
must be a causal connection, or nexus, between the
extraordinary circumstances he faced and the petitioner's
failure to file a timely federal petition." Ross v.
Varano, 712 F.3d 784, 803 (3d Cir. 2013). "To
secure equitable tolling, it is not enough for a party to
show that he experienced extraordinary circumstances. He must
further demonstrate that those circumstances caused him to
miss the original filing deadline." Id. at 803
n.29 (quoting Harper v. Ercole, 648 F.3d 132, 137
(2d Cir. 2011)).
The word "prevent" requires the petitioner to
demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests
and the lateness of his filing, a demonstration that cannot
be made if the petitioner, acting with reasonable diligence,
could have filed on time notwithstanding the extraordinary
Id. (quoting Valverde v. Stinson, 224 F.3d
129, 134 (2d Cir. 2000)). While the late PCR appeal may have
caused the statute of limitations to run for 117 days,
Petitioner still had 248 days after exhausting state court
remedies to file the instant Petition on time. (ECF No. 12 at
5). Equitable tolling is only available when an extraordinary
circumstance prevented Petitioner from making a timely
filing. See Rinaldi v. Gillis, 248 Fed.Appx. 371,
381 (3d Cir. 2007) (finding that equitable tolling was not
warranted for the alleged extraordinary circumstance that
occurred, when the petitioner still had one-and-one-half
months to make a timely filing). As the Supreme Court opined,
"[h]ad petitioner advanced his claims within a
reasonable time of their availability, he would not now be
facing any time problem." Pace v. DiGuglielmo,
544 U.S. 408, 419 (2005).
Petitioner alerts the Court to a new motion he filed in the
state court challenging the validity of his judgment of
conviction on procedural grounds. (ECF No. 16 at 7). At the
time of Petitioner's filing, however, it appeared that
the motion had yet to be ruled upon, and therefore, at this
time, the motion does not impact the instant Petition.
Moreover, Petitioner has not updated the Court as to the
status of his motion. The Court will not stay the matter
because Petitioner has filed a motion that challenges a
13-year-old judgment. Accordingly, because Petitioner does
not raise a valid argument for equitable tolling, the
Petition is dismissed with prejudice as untimely.
the Court denies a certificate of appealability. Federal law
provides that an appeal may not be taken to the court of
appeals from a final order in a § 2254 proceeding unless
a judge issues a certificate of appealability on the ground
that "the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). In Slack v. McDaniel, the United States
Supreme Court held that:
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.
529 U.S. 473, 484 (2000). Here, the Court denies a
certificate of appealability pursuant to 28 U.S.C. §
2253(c) because jurists of reason would not find it debatable
that denial of the Petition is correct.
IT IS on this ...